United States v. Vui Van Ho , 386 F. App'x 887 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 12, 2010
No. 09-12969 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00257-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VUI VAN HO,
a.k.a. Long Hair,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 12, 2010)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
The United States charged Vui Van Ho with four counts of possession with
intent to distribute methamphetamine and one count of criminal forfeiture. A jury
convicted Defendant on one count of possession and acquitted Defendant on the
remaining counts. Defendant sold 6.2 grams of methamphetamine during the
transaction for which Defendant was convicted. During sentencing, the District
Court attributed 59.9 grams of methamphetamine to Defendant. We see no
reversible error; we affirm.
Defendant was involved in selling methamphetamine to a confidential
informant. The first three transactions were supposed to be for methamphetamine
"ice" totaling 53.7 grams. The "drugs" sold during the first three transactions were
not what had been agreed upon; the police lab determined the substance contained
no methamphetamine. During the fourth transaction, Defendant provided 6.2
grams of methamphetamine.
The presentence report recommended holding Defendant accountable for
53.7 grams of methamphetamine "ice" and 6.2 grams of methamphetamine. Using
these quantities, the presentence report assigned a base offense level of 32.
Defendant objected to culpability for drug quantity above the 6.2 grams of
methamphetamine that he had actually been convicted of possessing.
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During the sentencing hearing, the United States presented two witnesses
who had not testified at trial. Both witnesses discussed their relationship with
Defendant's son. Defendant's son ran a drug ring and used Defendant for some
smaller transactions -- these smaller transactions were the focus of the testimony.
Defendant would act as a mule between his son and the witnesses on occasion, and
the witnesses testified on both the quantity and nature of the drugs that Defendant
carried.
The District Court credited the witnesses' testimony that Defendant was a
drug go-between. The District Court did not credit the witnesses' testimony that
Defendant carried methamphetamine "ice"; it only attributed methamphetamine to
the Defendant. The District Court determined that Defendant was reasonably
capable of providing--and was culpable for--59.9 grams of methamphetamine. The
District Court calculated a base offense level of 26, which provides a base
guideline range of 63 to 78 months. Based in part on Defendant's refusal to admit
guilt in the face of video evidence, the District Court sentenced Defendant to 70
months.
We review the District Court's determination of the quantity of drugs for
sentencing purposes for clear error. United States v. Zapata, 139 F.3d 1355, 1357
(11th Cir. 1998).
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The District Court determined the quantity of methamphetamine that
Defendant was sentenced for based on the four transactions Defendant had with the
informant, even though Defendant was acquitted of the counts relating to three of
those transactions. A District Court may take acquitted conduct into account
during sentencing. United States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir.
2005). As long as the final sentence does not exceed the statutory maximum for
the convicted count, no constitutional violation is involved. Id.
Application note 12 of the United States Sentencing Guidelines § 2D1.1 says
"[t]ypes and quantities of drugs not specified in the count of conviction may be
considered in determining the offense level." The note later goes on to say, "[i]f
the offense involved both a substantive drug offense and an attempt . . . the total
quantity involved shall be aggregated to determine the scale of the offense." Also,
"[i]f an offense involving an agreement to sell a controlled substance, the agreed-
upon quantity of the controlled substance shall be used to determine the offense
level . . . ."
The District Court based the 59.9 gram drug quantity on the amount of
methamphetamine that Defendant attempted to sell to the confidential informant.
The District Court was also authorized to take into account the quantities to which
the witnesses testified. United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir.
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1996)("In estimating the quantity of drugs attributable to a defendant, a court may
base its computation on evidence showing the average frequency and amount of a
defendant's drug sales over a given period of time").
The record supports the District Court's calculation of 59.9 grams of
methamphetamine. Defendant's sentence was within the statutory range for the
count of conviction. Defendant asks us to overturn the District Court's credibility
determination on the two witnesses. "[W]e give great deference to the district
court's assessment of the credibility and evidentiary content of [witnesses's]
testimony." United States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995). "Because
appellate courts reviewing a cold record give particular deference to credibility
determination of a fact-finder who had the opportunity to see live testimony we do
not second guess the court's judgments." CBS Broad., Inc. v. EchoStar Commc'ns
Corp., 450 F.3d 505, 517 n.23 (11th Cir. 2006)(internal citation omitted). We see
no reason to second-guess the District Court's credibility determinations in this
case.
AFFIRMED.
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